Apple Inc. v. Samsung Electronics Co. Ltd. et al

Filing 1650

ORDER Regarding Objections by Judge Lucy H. Koh granting in part and denying in part 1607 Administrative Motion to File Under Seal; denying 1628 Administrative Motion to File Under Seal (lhklc2, COURT STAFF) (Filed on 8/9/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
For the Northern District of California

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APPLE, INC., a California corporation,

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Plaintiff,
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v.
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SAMSUNG ELECTRONICS CO., LTD., A
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Korean corporation; SAMSUNG
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ELECTRONICS AMERICA, INC., a New York )
corporation; SAMSUNG
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TELECOMMUNICATIONS AMERICA, LLC, )
a Delaware limited liability company,
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Defendants.
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Case No.: 11-CV-01846-LHK
ORDER RE: OBJECTIONS TO SINGH,
TEKSLER, LEE, AND CHANG
EXHIBITS AND DEPOSITION
DESIGNATIONS

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After reviewing the parties’ briefing, considering the record in the case, and balancing the
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considerations set forth in Federal Rule of Evidence 403, the Court rules on Samsung’s objections
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as follows:
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A. Karan Singh1

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1. Samsung’s Objections
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1

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Apple has filed a motion to seal related to its objections and responses to Dr. Singh. Specifically,
Apple seeks to seal Dr. Singh’s expert report. Although Samsung has not yet filed a declaration in
support of the motion as is required by Civil Local Rule 79-5(d), the Court has reviewed the report
and finds that only the portions of the report which contain undisclosed source code are properly
sealable. See Agency Solutions.Com, LLC v. TriZetto Group, Inc., 819 F. Supp. 2d 1001, 1017
(E.D. Cal. 2011) (“[S]ource code is undoubtably[sic] a trade secret.”); Kamakana v. City and Cnty.
of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006). Accordingly, Apple’s motion to seal is
GRANTED, in part. Samsung shall file a redacted version that redacts only source code.
Additionally, as the Court has already noted, the courtroom will be open at all times during trial.
Therefore, any slides used during Dr. Singh’s testimony will be available to the public.
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Case No.: 11-CV-01846-LHK
ORDER ON OBJECTIONS TO EXHIBITS

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EXHIBIT
NUMBER
PX49

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PDX29

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United States District Court
For the Northern District of California

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EXHIBIT
NUMBER
DX2557

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Sustained. Although Samsung only produced PX 49 on April 10, 2012, over a
month after the March 8, 2012 close of discovery, Dr. Singh’s rebuttal report
was not completed until April 16, 2012. Thus, even with Samsung’s late
production, Dr. Singh had the opportunity to include PX49 in his expert report
but failed to do so. Because of this failure, Samsung lacked notice that Dr.
Singh would be relying on PX49 in his testimony and therefore did not depose
him on it. Because Samsung has not had the opportunity to depose Dr. Singh
regarding PX49, it would be unfair to allow Dr. Singh to testify on PX49 at trial.
FRE 102 and 403. However, this does not preclude Apple from seeking to
introduce this document through another witness.
Overruled. Although Dr. Singh never explicitly discussed source code in
connection with claim 8 of the ‘915 patent, he did discuss this code in
connection with claim 1. Although claim 1 and claim 8 are technically distinct
claims, a reading of the ‘915 patent reveals that claim 1 discloses a method for
scrolling on a touch-sensitive display of a device and claim 8 discloses a
machine readable storage medium that stores instruction that, when executed,
performs the method of claim 1. Other than their preambles, claim 8 and claim
1 are substantially the same. Accordingly, although Dr. Singh only discussed
source code in connection with claim 1, Samsung should have been on notice
that such discussion would also apply to claim 8. Samsung provides no support
for its claim that Dr. Singh lacks foundation to discuss PDX29; so long as Apple
lays foundation at trial, PDX29 will be admissible.
2. Apple’s Objections

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COURT’S RULING ON OBJECTION

October 25,
2011 ITC 796
Deposition
Transcript

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COURT’S RULING ON OBJECTION
Sustained. The video in DX2557 contains footage of a Galaxy Tab 10.1 LTE
that shows a “blue glow” design-around for the ‘381 bounce-back patent, which
was excluded by Judge Grewal. This Court affirmed Judge Grewal’s ruling.
Samsung concedes the presence of the “blue glow.”
Sustained. This exhibit contains testimony from Dr. Singh’s ITC deposition
regarding claim construction for patents not asserted in this litigation. Such
information is not relevant to any issue in this case, and is therefore barred under
FRE 402 and 403. Furthermore, the Court granted Samsung’s motion in limine
to exclude the findings of parallel proceedings as confusing to the jury. See ECF
No. 1269 ¶ 14. Accordingly, the Court sustains Apple’s objection because the
risk of confusing the jury and wasting time by introducing excluded evidence
outweighs the probative value of this testimony under FRE 403.

B. Boris Teksler2

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2

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Samsung filed a motion to seal portions of its objections based on the protective order and
confidentiality designations made by Apple. See ECF No. 1628. Although Apple has not yet filed
a declaration in support of the motion as is required by Civil Local Rule 79-5(d), the Court has
reviewed the motion and finds that none of the information is properly sealable pursuant to the
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Case No.: 11-CV-01846-LHK
ORDER ON OBJECTIONS TO EXHIBITS

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1. Samsung’s Objections
EXHIBIT
NUMBER
Testimony
About the
August 4, 2012
Meeting
Between Apple
and Samsung

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United States District Court
For the Northern District of California

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PX52
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COURT’S RULING ON OBJECTION
Reserved. Mr. Teksler was not present at the August 4, 2010 meeting.
Accordingly, Mr. Teksler’s knowledge of the August 4 meeting comes
exclusively from speaking with Apple’s General Counsel and from subsequent
meetings with Samsung in which the parties cross-referenced the earlier PX52
presentation. In the portions of his deposition provided to the Court, Mr.
Teksler repeatedly cited attorney-client privilege to avoid discussing the
conversations with Apple’s General Counsel, and it remains unclear what
information exactly Mr. Teksler obtained from Samsung employees as opposed
to what information was obtained from Apple’s General Counsel. If Apple
intends to introduce this testimony at trial, Apple must make a sufficient proffer
that Mr. Teskler learned about the presentation from Samsung employees rather
than from Apple’s General Counsel. Apple must file this proffer by 7:30 a.m.
on August 10, 2012.
Reserved. Mr. Teksler created PX52 and therefore has personal knowledge
under Rule 602 to introduce PX52. However, Apple has not provided enough
evidence for the Court to find, by a preponderance of the evidence, that
Samsung was shown the slide show presentation in PX52. Accordingly, Apple
cannot introduce PX52 to prove that Samsung had notice of the information on
the slides — the only non-hearsay purpose for which Apple offers the exhibit –
unless Apple makes a sufficient proffer that Samsung was shown PX52. Apple
must file this proffer by 7:30 a.m. on August 10, 2012.

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2. Apple’s Objections

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EXHIBIT
NUMBER
PX51/DX586
(same
document)

COURT’S RULING ON OBJECTION
Overruled. Although PX51 claims on its face that it is provided for “Business
Settlement Purposes Only” and provided under “Rule 408 of Federal Rules of
Evidence, Without Prejudice,” Apple has offered no authority for the proposition
that such a declaration is sufficient to exclude evidence under the FRE 408. FRE
408 precludes the use of compromise offers and negotiations “either to prove or
disprove the validity or amount of a disputed claim.” Samsung seeks to
introduce PX51 to demonstrate lack of notice, a permissible purpose under Rule
408. See Fed. R. Evid. 408. To avoid any potential Rule 403 problems, the
Court will issue a limiting instruction to the jury that “PX51 may be considered
to establish whether or not Samsung had notice of Apple’s design claims, and
may not be used to prove or disprove the validity or amount of any disputed
claims.”

C. Jun Won Lee
1. Samsung’s Objections

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“compelling reasons” standard set forth in Kamakana. Kamakana v. City and Cnty. of Honolulu,
447 F.3d 1172, 1178 (9th Cir. 2006). Accordingly, Samsung’s motion is DENIED.
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Case No.: 11-CV-01846-LHK
ORDER ON OBJECTIONS TO EXHIBITS

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EXHIBIT
NUMBER
Lee Dep. at
24:13-15

COURT’S RULING ON OBJECTION
Sustained. Apple has withdrawn this deposition designation.
2. Apple’s Objections

EXHIBIT
NUMBER
Lee Dep. at
45:2-15, and
40:24-41:2,
44:3-5; 44:7-9;
55:20-21;
55:23-56:2

United States District Court
For the Northern District of California

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COURT’S RULING ON OBJECTION
Sustained in part. Consistent with this Court’s prior ruling that Apple may not
introduce evidence related to any FRAND issues until its rebuttal case, Samsung
may not introduce evidence about Samsung’s assertions of patent infringement
against Apple in Apple’s affirmative case. Rather, Samsung may present this
evidence in its affirmative case. However, counter depo designations 55:20-21
and 55:23-56:2 relate to whether Apple discussed its trade dress at a meeting
with Samsung. This relates to Apple’s affirmative case and is admissible at this
time.

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D. DONG HOON CHANG
1. Samsung’s Objections
COURT’S RULING ON OBJECTION

WITNESS
AND
EXHIBIT NO.
Chang Dep. at
157:20-22,
158:5-10,
158:18-19 and
158:23-25.

Reserved. Samsung objects that Dong Hoon Chang’s March 7, 2012 deposition
testimony at 157:20-22, 158:5-10, 158:18-19 and 158:23-25 references
communications with Samsung’s in-house legal team, and is protected by
attorney-client privilege. Samsung filed portions of the Dong Hoon Chang
deposition. See ECF No. 1637, Hutnyan Decl., Ex. H. However, Samsung did
not file pages 157 and 158, which contain the allegedly privileged testimony. If
Samsung wishes the Court to consider its objection, Samsung must lodge the
disputed portions of the Chang deposition by August 10, 2012 at 7:30 a.m.

2. Apple’s Objections
COURT’S RULING ON OBJECTION

WITNESS
AND
EXHIBIT NO.
Chang Dep. at Reserved. Neither party has submitted the relevant deposition pages to the
157: 8-10.
Court. If Apple wishes the Court to consider its objection, Apple must lodge the
relevant passages for review by August 10, 2012, at 7:30 a.m.
The Court’s policy has been and will continue to be that a party requesting
additional deposition testimony for the rule of completeness must play the
additional deposition excerpts during its examination of the witness.

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Case No.: 11-CV-01846-LHK
ORDER ON OBJECTIONS TO EXHIBITS

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IT IS SO ORDERED.

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Dated: August 9, 2012

_________________________________
LUCY H. KOH
United States District Judge

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United States District Court
For the Northern District of California

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Case No.: 11-CV-01846-LHK
ORDER ON OBJECTIONS TO EXHIBITS